4 Things We Learned from China’s 4th Plenum

The Fourth Plenum wrapped up Thursday after a four-day discussion focused on the “rule of law” in China. At the plenum’s closing, the CCP Central Committee issued a communique on “comprehensively advancing ruling the country according to the law” (and Xinhua provided a partial English translation). While the details of implementation remain scarce, the document presents a general overview of reforms to China’s legal system. Below, four takeaways from the Fourth Plenum communique.

First, as expected, the Central Committee moved to lessen local officials’ control over the legal system. The communique said that China would create circuit courts that will effectively sever the direct connection between local judges and local Party leaders. Although the courts will of course still be beholden to Party guidance, this will make it more difficult for low-level officials to interfere in legal proceedings to advance their own interests. The communique also promised to “explore establishing cross-administrative region courts and procuratorates,” another crucial step in loosening local control over China’s judicial system.

The CCP also announced that officials will be judged on their effectiveness in upholding the rule of law. From now on, success in implementing the rule of law will be a “significant index” in evaluating government officials – which means official promotions (and demotions) will be decided in part based on demonstrated respect for the rule of law. How officials will be judged on this remains unclear, and it will still be only one of many factors used to evaluate officials. However, the communique also promised to establish a mechanism to “record” the names of officials who try to interfere in judicial cases. Such officials will be publicly named, the communique warned.

Second, the communique promised to increase both the accountability and transparency of government. The document promised to establish “a mechanism to examine the legitimacy of major decision-making in governments.” This new system will include “a lifelong liability accounting system for major decisions and a retrospective mechanism to hold people accountable for wrong decisions.” The CCP will also seek increased government transparency.

Both of these initiatives fit with Xi’s broader focus on revamping the connection between the Party and the people. His “mass line campaign,” which ended earlier this fall, also emphasized the need for Party officials to be responsive to the needs of the people, both to establish effective governance and to boost the Party’s image. In another step designed to make the government more responsive to the people, the communique promised to “seek to allow prosecutors to file public interest litigation cases.” Beijing has been incrementally expanding the scope of public interest cases, particularly ones involving consumer protection and environmental issues. Implemented effectively, such lawsuits could provide a much-needed check on the collusion between big businesses and local officials.

Third, as I mentioned yesterday, the Fourth Plenum placed an usual emphasis on the importance of China’s constitution. The communique continued this trend, insisting that the constitution is the “core” of the “socialist legal system.” “To realized the rule of law, the country should be ruled in line with the Constitution,” the communique said, adding that “the system to ensure the implementation of the Constitution … should be improved.” The communique, in particular, called for the National People’s Congress and the NPC Standing Committee to have a larger role in making sure China’s constitution is obeyed.

As Cheng Li, a senior fellow at the Brookings Institution, told Reuters,the plenum report is“not a landmark decision.” Implementation of the “rule of law” as outlined at the Fourth Plenum will not suddenly make the Party subordinate to the constitution and the law. But, Cheng added, “It’s the beginning of China’s fight for constitutionalism. The fact that they have talked about the Constitution itself is encouraging.” If nothing else, the Central Committee’s emphasis on the constitution provides more space for discussion. For the past several years, the term “constitutionalism” has been effectively taboo.

Fourth, the communique made it clear that the “rule of law” does not mean a decrease in Party authority. The English-language “highlights” provided by Xinhua somewhat downplayed the emphasis the original communique placed on the Party’s continued leadership role over the legal system. “Persisting in Party leadership is the basic requirement for the socialist rule of law… Party leadership and the socialist rule of law are identical,” the Chinese-language communique asserts. The communique also points out, as a clarification to its emphasis on the constitution, that “China’s constitution establishes the leading status of the Chinese Communist Party.”

In other words, the Party remains above the law and the constitution. The “rule of law” remains a mechanism for asserting Beijing’s authority, not a means to circumscribe CCP power.

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Robert A. Kapp is senior advisor to the China Program at the Carter Center. He has been principal of Robert A. Kapp and Associates, a business consulting firm, since 2004. From 1994 through 2004 he served as President of the United States-China Business Council…